Brodie v. Miller

• Decision Date: 06 April 1940
• Citation: 143 S.W.2d 1042
• Parties: BRODIE v. MILLER et al.
• Court: Tennessee Supreme Court

Page 1042

143 S.W.2d 1042

BRODIE v. MILLER et al.

Court of Appeals of Tennessee, Eastern Section.

April 6, 1940.

Certiorari Denied by Supreme Court October 6, 1940.

Appeal in Error from Circuit Court Hamilton County; Fred B. Ballard, Judge.

Suit by Mark Brodie, Jr., against Ralph E. Miller, Jr., and George Silas, for personal injuries received by the plaintiff at the hands of Ralph E. Miller, Jr., who, in a drunken rage, mistaking the plaintiff for another, shot plaintiff and seriously injured him at an amusement hall operated by George Silas. From the judgment, the plaintiff appeals in error.

Affirmed.

Vaughn Miller and Jere T. Tipton, both of Chattanooga, for plaintiff in error.

Strang, Fletcher & Carriger and John Chambliss, all of Chattanooga, for defendants in error.

PORTRUM, Judge.

This is a suit for personal injuries brought by Mark Brodie, Jr., against George Silas, an operator of a public amusement hall in the City of Chattanooga, known as the "Blue Room," and Ralph E. Miller, Jr., a patron of the amusement hall, to collect damages for personal injuries received by Brodie at the hands of the patron, Ralph E. Miller, Jr., who, in a drunken rage, mistaking the plaintiff Brodie for another, shot him and seriously injured him. Judgment was taken against Miller in the lower court from which there is no appeal, but as for the case against the proprietor Silas, the Circuit Judge directed a verdict in his favor, upon the theory that he committed no breach of duty owed to the plaintiff, who also was a patron of the hall, and from this judgment the plaintiff has appealed in error here for a review.

The amusement hall, known as the Blue Room, is located on the second floor of a building on Market Street in Chattanooga, and there is a stairway leading from the entrance on Market Street to the hall and a door at the entrance at the foot of the stairway. There is also another stairway leading from the amusement hall to the rear of the building and into the kitchen of a restaurant operating upon the first floor of the building, which restaurant is immediately under the hall. There is a bar in the hall from which is dispensed beer, wine, and soft drinks, and tables are upon the floor upon which food and sandwiches are served to the patrons along with the drinks. The central portion of the hall is used for dancing, and an orchestra furnishes the music.

The defendant Silas operates the hall and employs waitresses and a man by the name of Jimmie Williams, who is known as the "Bouncer," and whose duty it is to preserve order in the hall and protect the patrons. The closing hour of the hall is 1:00 a.m., when the dancing stops. The front entrance is locked against incoming patrons, and some of the lights are switched off, and the patrons who are served filter out at the completion of their meal or drinks.

The plaintiff Brodie and a friend, Miss Letha Andrews, had been to a skating party on the night of October 21, 1938, and about 12 or 12:30 a.m., upon their return, stopped at the Blue Room for beer and sandwiches; a few minutes thereafter, as the place was closing up and the patrons were preparing to leave, trouble broke out between Miller and one Jack King, both of whom were patrons of the Blue Room. Miller was standing at the bar drinking with King when King laid his cigarette upon the counter and Miller picked it up. King laid claim to the cigarette and Miller threw it in his face, and an altercation was about to take place when Silas and others intervened and separated them before any blows were struck. But Silas, fearing more serious trouble upon the street, detained Miller for a few minutes and sent King down the steps and out of the place. In five or ten minutes Miller was permitted to leave and he went down the back steps and came around the building to the front where King had lingered waiting for a friend, and in the meantime Silas and his "Bouncer" Williams with a waitress had come down the front steps for the purpose of preventing any trouble, anticipating that perhaps King had remained there. As they came out of the entrance Miller came around the corner of the building, and immediately renewed the controversy with King. Someone hollered to King to look out for Miller was advancing upon him with a knife. Silas grabbed Miller for the purpose of separating them as he had done before, but Miller jerked away from him and advanced upon King when Williams took hold of Miller and Miller used force to extricate himself for the purpose of attacking King, when Williams struck him over the head with a blackjack or billy stunning him but not subduing him, when he again hit him with the blackjack knocking him to the street. Miller got up and was very angry with Williams and threatened him, saying that he would get even with him, and then proceeded across the street.

Silas and Williams then returned to the entrance, closing the door and locking it, and going up the steps to the hall. The waitress crossed over the street to the rear of Miller and saw him go to his car which was parked on the opposite side and take a pistol out of the car. Miller then recrossed the street to the entrance to the hall and finding it locked broke in the glass portion of the door and unlocked it, and mounted the steps. In the meantime a patron in the hall above had seen Miller crossing the street with the pistol and had warned the patrons in the hall that he was coming, creating quite a commotion among the patrons. Williams, the "Bouncer," hearing this and knowing that Miller was angry with him, fled down the back steps and hid in the kitchen of the restaurant below.

Silas met Miller at the head of the steps, and cautioned him about creating any disturbance among the patrons, and since Williams had fled he did nothing else to restrain Miller which might have further infuriated him. When Miller appeared in the hall the plaintiff and the girl with the plaintiff attempted to flee down the back steps and had reached almost to the door at the landing when Miller, mistaking the plaintiff for Williams, began firing at him from the head of the steps, striking him twice and inflicting serious chest wounds. Miller then left the hall and returned to his car, getting in it and driving away and later returning to the police station where he gave himself up.

The defendant Silas and his employee Williams had theretofore requested Miller not to come to the hall since he had raised a disturbance over one of the waitresses there. But Miller had disregarded this request and had returned to the hall twenty-five or more times since the request but had created no further disturbance until the night in question.

Upon these facts the plaintiff bases his declaration. It contains two counts; the first is a common-law count grounded upon the duty of the proprietor of the public amusement hall to afford his patrons protection and to preserve order. And it is alleged that the proprietor did not use ordinary care for the protection of the plaintiff against the felonious assault of Miller upon the occasion, and that the conduct of Silas and the employee in attempting to perform this duty was negligent and aggravating instead of quieting the unruly patron.

The second count of the declaration is based upon the violation of a city ordinance. The ordinance is identified by its caption and number followed by this declaration:

"Among other provisions of said ordinance, it is declared by section 5 thereof to be unlawful for the proprietor of a place at which beer, wine, and such beverages as are covered by said ordinance or sold to be: `Permit—disorderly persons * * * to...